TIBREWAL, J. - (1.) - Both these applications may be disposed of by a common order as they have been filed in criminal case FIR No. 32/94 registered at Police Station, Alwar Gate, Ajmer under S. 304b, IPC. Bail application No. 750/94 is under S. 439, Cr. P. C. by the husband Yogesh Prakash and his elder brother Ravindra Prakash, while bail application No. 751/94 has been filed under S. 438, Cr. P. C; by the mother-in-law of the deceased. Deceased Smt. Yogeshwari Devi was married to the petitioner Yogesh Prakash on May 27, 1993 and within 9 months of her marriage she had unnatural death at her in-law's house. The matter is still under investigation.
(2.) IT was contended by the learned counsel that the deceased Yogeshwari Devi had committed suicide in her room and a false case has been made by her parents, as her death has taken place within few months of the marriage. Learned counsel contended that the ingredients of S. 304b, IPC, are not prima facie established from the material collected by the investigating agency as there is no evidence on the record that the deceased Yogeshwari Devi was subjected to cruelty or harassment by any of the petitioners soon before her death and that such cruelty and harassment was in connection with any demand for dowry. Learned counsel placed reliance on Rajendra Singh v. State (1), Gurbaksh Singh Sibbia etc. v. The State of Punjab (2), and Bhawani Singh v. State & Anr. On the other hand, learned Public Prosecutor, assisted by the learned counsel for the complainant, vehemently opposed the bail applications. It was contended that the matter is under investigation and the accused petitioners should not be released on bail or anticipatory bail keeping in view the magnitude and seriousness of the matter. It was contended by them that there is overwhelming evidence on the record that after the marriage, the deceased was subjected to harassment and cruelty in connection with demand for dowry. Inspite of the fact that the parents of the deceased had spent huge amount in the marriage of the deceased, the demand of a colour television, scooter and cash was being consistently raised by the husband and the mother-in-law as well as other relatives of her husband which compelled her to commit suicide. She was not allowed even to visit her parents' house till the demand of dowry was fulfilled by her parents. Learned Public Prosecutor further contended that the police has also seized a diary containing writing of the deceased and a perusal of the same would show that she was subjected to serious harassment and cruelty and her life was made miserable by her in-laws. Reliance in this connection is placed on Samunder Singh v. State of Rajasthan and Ors. I have given my careful consideration to the above submissions and I also minutely went through the case diary. It is not disputed that the marriage of the deceased Yogeshwari Devi with the petitioner Yogesh Prakash had taken place on May 27, 1993 and within nine months of her marriage she met with her death under abnormal circumstances. It may be true that she might have committed suicide by hanging on a ceiling fan. However, from this. fact it cannot be said that the offence of dowry death under S. 304b, IPC is not made out against the accused persons. Sec. 304b, IPC defines 'dowry Death' and punishment for the same. It reads as under: - "304-B. Dowry death - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation - For the purposes of this sub-section, dowry shall have the same meaning as in Sec. 2 of the Dowry Prohibition Act, 1961 (28 of 1961 ). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. S. 113-B, Evidence Act raises a presumption as to dowry death. It provides as under : "s. 113-B. Presumption as to dowry death : When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death". It is true that grant of anticipatory bail or bail after arrest is a judicial discretion to be exercised on the particular facts and circumstances of the case. In Gurbaksh Singh Sibbia's case (supra) the Hon'ble Supreme Court had an occasion to consider the scope and ambit of S. 438, Cr. P. C. which provides anticipatory bail. Their Lordships observed that in regard to anticipatory bail, if the proposed accusation appears to stem not from motive of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. Their Lordships further observed : "there are several other considerations too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the State" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail".
(3.) IN Samunder Singh's case (supra) their Lordships observed as under:- "the matter regarding the unnatural death of the daughter-in-law at the house of her father-in-law was still under investigation and the appropriate course to adopt was to allow the concerned Magistrate to deal with the same on the basis of the Material before the Court at the point of time of their arrest in case they were arrested. It was neither prudent nor proper for the High Court to have granted anticipatory bail which order was very likely to occasion prejudice by its very nature and timing. The High Court is under no compulsion to exercise its jurisdiction to grant anticipatory bail in a matter of this nature". In the background of the aforesaid legal position, I considered the entire material against each of the accused petitioners. Statements of the witnesses recorded under S. 161, Cr. P. C, were minutely considered. After taking into consideration the entire material on record and the facts and circumstances I am of the view that the petitioner Yogesh Prakash, the husband of the deceased, does not deserve to be released on bail under S. 439, Cr. P. C. Similarly, Smt. Shakuntla, mother-in-law of the deceased, also does not deserve to be granted anticipatory bail. Consequently, bail applications filed by Yogesh Prakash and Smt. Shukuntla are hereby rejected. So far the petitioner Ravindra Prakash is concerned, he is elder brother of the husband of the deceased. During investigation, some evidence has been collected by the investigating agency which shows that the petitioner Ravindra Prakash was having a separate mess from his brother Yogesh Prakash. In the facts and circumstances of the case but without expressing any opinion on the merits I am of the opinion that Ravindra Prakash should be released on bail on certain conditions. It is, therefore, ordered that the petitioner Ravindra Prakash shall be released on bail provided he furnishes a personal bond in the sum of Rs. 20,000/- (Twenty thousand) together with two sureties in the sum of Rs. 10,000/- (Ten thousand) each to the satisfaction of the Station House Officer (Investigating Officer) concerned for his appearance before him as and when called upon to do so. The bail shall be subject to the condition that he shall not tamper with the prosecution witnesses. If the said condition is violated it shall be open to the trial Court to cancel his bail in accordance with law without making any reference to this Court. ;